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Digital and First Sale Doctrine Thoughts

LISNews had this interesting article on the death of the First Sale Doctrine in the digital age. In rebuking ownership and proclaiming that the software, music, movies, books, and so forth are licensed, leased, or rented, people are denied the right to transfer (and for the specific purposes of this post, lend or give) a copyrighted work from themselves to another. While I will concede that my support for the establishment of First Sale Doctrine rights for digital property has major problems when it comes to how to transfer ownership, I can’t help but wonder if the elimination of ownership (or even the ability to lend or give) is a good thing or a bad thing.

My first reaction to the article was the immediate difference between purchasing and (in effect) renting. In disallowing ownership and some of the stakeholdership associated with it, does it transform our notions of pop culture into a transitory or disposable one? (Considering how quickly music groups and movies fly through our lives, perhaps this is a late discovery.) As much as companies might feel that lending is a lost sale, is this better than having people with no actual investment in a media or medium and treating it as such? Without ownership ties, does this effect how easily or readily people might give up on a band, book, or movie? I can’t help but feel like it does.

Following this, all I could imagine is what the management of digital rights must cost the industries involved and what it would be in perpetuity. As the number of works increases, it will involve managing those copyrights and their associated trademarks and brands. Considering the length of copyright protecting, this means that someone will have to be placed into the role of the ever vigilant observer to ensure these rights are protected till they expire. (Perhaps there can be some sort of pseudo-religious order founded on the basis of protecting copyrights since it’s going to take several generations of keepers to safeguards. Like the Knights Templar of Copyright or something.) How much of an actual cost will become? Is this a better allocation of resources compared to establishing some digital rights?

Given that companies have gone after file sharers and come up with a fistful of bad press and a negative cost: benefit ratio, there has to be a sensible middle ground.

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2 thoughts on “Digital and First Sale Doctrine Thoughts”

First Sale needs to exist in the digital age, and you’ve laid out some of the reasons why. I think I am simply amplifying your point when I say that a pay-per-view world,which the publishers, like the record companies, imagine would be beneficial for them, makes any giving viewing of the material far less valuable to the reader or viewer that being able to buy the material outright, give it away, donate it, or sell it used.

We’re seeing $0.99 “books” because that’s what a limited-use file from an unknown or relatively unknown author is worth. “Books” from real publishers have a higher minimum value, because there is an effective guarantee of a minimum level of readability, but they’re still not worth anywhere close to what a book you buy is worth. You are not getting the same rights. And in the long run, if publishers want to collect equivalent dollar amounts for limited use files, they are, as you note, going to to a whole lot of active management for “books” whose sales have dropped off as they age.

The technological aspects of lending an ebook are already solved, for the publishers who will let libraries lend them and/or allow B&N and Amazon to enable the Lend feature on their titles. Giving away or selling an ebook without the individual retaining a copy is a problem that I don’t believe has been solved yet, but publishers would be far better served to be looking for that solution rather than trying to treat a book like the latest release of Microsoft Word.